[Federal Register Volume 60, Number 114 (Wednesday, June 14, 1995)]
[Rules and Regulations]
[Pages 31229-31230]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-14473]



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 Rules and Regulations
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  Federal Register / Vol. 60, No. 114 / Wednesday, June 14, 1995 / 
Rules and Regulations  


[[Page 31229]]


DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 971

[Docket No. FV95-971-1FR]


Termination of Marketing Order 971; Lettuce Grown in the Lower 
Rio Grande Valley in South Texas

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Termination order.

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SUMMARY: This action terminates the Federal marketing order for lettuce 
grown in the Lower Rio Grande Valley in South Texas (order) and the 
rules and regulations issued thereunder. The Secretary of Agriculture 
(Secretary) has determined that the order no longer tends to effectuate 
the declared policy of the Agricultural Marketing Agreement Act of 1937 
(Act). In recent years, this industry has declined significantly in 
numbers of producers and handlers. In 1980, there were 42 producers and 
11 handlers. In 1992, there were three producers and one handler. All 
known commercial production and handling of South Texas lettuce has 
ceased since 1992 and there are no indications that the industry will 
be revived.

EFFECTIVE DATE: July 14, 1995.

FOR FURTHER INFORMATION CONTACT: Jim Wendland, Marketing Order 
Administration Branch, Fruit and Vegetable Division, AMS, USDA, P.O. 
Box 96456, room 2523-S, Washington, DC 20090-6456, telephone 202-720-
2170, or Belinda G. Garza, McAllen Marketing Field Office, Fruit and 
Vegetable Division, AMS, USDA, 1313 East Hackberry, McAllen, Texas, 
78501, telephone 210-682-2833.

SUPPLEMENTARY INFORMATION: This action is governed by the provisions of 
section 8c(16)(A) of the Agricultural Marketing Agreement Act of 1937, 
as amended (7 U.S.C. 601-674), hereinafter referred to as the Act.
    The Department of Agriculture (Department) is issuing this action 
in conformance with Executive Order 12866.
    This termination order has been reviewed under Executive Order 
12778, Civil Justice Reform. This action is not intended to have 
retroactive effect. This termination order will not preempt any State 
or local laws, regulations, or policies, unless they present an 
irreconcilable conflict with this rule.
    The Act provides that administrative proceedings must be exhausted 
before parties may file suit in court. Under section 608c(15)(A) of the 
Act, any handler subject to an order may file with the Secretary a 
petition stating that the order, any provision of the order, or any 
obligation imposed in connection with the order is not in accordance 
with law and request a modification of the order or to be exempted 
therefrom. A handler is afforded the opportunity for a hearing on the 
petition. After the hearing the Secretary would rule on the petition. 
The Act provides that the district court of the United States in any 
district in which the handler is an inhabitant, or has a principal 
place of business, has jurisdiction in equity to review the Secretary's 
ruling on the petition, provided a bill in equity is filed not later 
than 20 days after date of the entry of the ruling.
    Pursuant to requirements set forth in the Regulatory Flexibility 
Act (RFA), the Administrator of the Agricultural Marketing Service 
(AMS) has considered the economic impact of this action on small 
entities.
    The purpose of the RFA is to fit regulatory actions to the scale of 
business subject to such actions in order that small businesses will 
not be unduly or disproportionately burdened. Marketing orders issued 
pursuant to the Act, and rules issued thereunder, are unique in that 
they are brought about through group action of essentially small 
entities acting on their own behalf. Thus, both statutes have small 
entity orientation and compatibility.
    In recent years, this industry has declined significantly in 
numbers of producers and handlers. During the first year the order was 
in effect, there were 68 producers and 31 handlers. In 1980, there were 
42 producers and 11 handlers. In 1992, there were three producers and 
one handler. All known commercial production and handling of South 
Texas lettuce has since ceased. Small agricultural producers have been 
defined by the Small Business Administration (13 CFR 121.601) as those 
having annual receipts of less than $500,000, and small agricultural 
service firms are defined as those whose annual receipts are less than 
$5,000,000. The majority of the former South Texas lettuce producers 
and handlers had been classified as small entities.
    The South Texas Lettuce Committee (committee) met on May 29, 1991, 
and unanimously recommended that the order's handling regulation that 
was currently in effect be suspended for the 1991-92 lettuce marketing 
period. The recommendation was made to eliminate the continued expense 
of administering the order. The Department issued an interim final 
rule, which was published in the October 31, 1991, issue of the Federal 
Register (56 FR 55986). The rule suspended the 1991-92 handling 
regulation in effect under the order and invited public comment through 
December 2, 1991. No comments were received.
    On July 13, 1992, the Department issued a suspension order, which 
was published in the July 17, 1992, issue of the Federal Register (57 
FR 31631). The action suspended all of the provisions of and 
established pursuant to the order from July 17, 1992, through July 17, 
1995, because the Secretary determined that the order no longer tended 
to effectuate the declared policy of the Act. The action also indicated 
that, during this period, the Department would monitor lettuce 
production and the number of active producers and handlers in the 
production area. At the end of that period an evaluation would be made 
by the Secretary on whether there was a revival in lettuce production 
and whether to reactivate the order or begin termination proceedings.
    As an interim step in this evaluation, in December 1992, the 
Department conducted a survey of former industry handlers to determine 
whether they expected a revival of South Texas lettuce production in 
the next two years, and if not, whether they wanted a refund of excess 
reserve funds prior to the end of the evaluation period.
    The overwhelming consensus of the respondents was that they did not 
plan to resume lettuce production and the 

[[Page 31230]]
handlers wanted all but $3,000 of the reserve fund to be refunded to 
them as soon as practicable. On February 26, 1993, the Department 
issued refund checks totaling approximately $25,000 to handlers based 
on their pro rata share of assessments paid during the 1988-89 through 
1990-91 marketing seasons. The remaining $3,000 reserve was considered 
sufficient to cover unforeseen expenses during the period of suspension 
and to cover necessary expenses of liquidation in the event the 
marketing order would be terminated.
    Commercial production and handling of South Texas lettuce ceased in 
1992; there are currently no indications that the industry will be 
revived. Without a sufficient number of producers and handlers, it is 
impossible for the Secretary to appoint the required committee or 
otherwise continue the operation of the order.
    Therefore, based on the foregoing considerations, pursuant to 
section 8c(16)(A) of the Act and Sec. 971.84 of the order, it is found 
that Marketing Order No. 971, covering lettuce grown in the Lower Rio 
Grande Valley in South Texas, does not tend to effectuate the declared 
policy of the Act and is hereby terminated. The trustees appointed by 
the Secretary shall continue in the capacity of concluding and 
liquidating the affairs of the former committee, until discharged by 
the Secretary.
    Section 8c(16)(A) of the Act requires the Secretary to notify 
Congress 60 days in advance of the termination of a Federal marketing 
order. Congress was so notified on March 15, 1995.
    Pursuant to 5 U.S.C. 553, it is also found and determined, upon 
good cause that it is impracticable, unnecessary, and contrary to the 
public interest to give additional preliminary notice, or to engage in 
further procedure with respect to this action, because: (1) This action 
relieves all restrictions on handlers by terminating the provisions of 
part 971; (2) in 1992, the Department issued a rule suspending all 
provisions of the order for two years to allow sufficient time for a 
possible revival of the lettuce industry before termination of the 
order; and (3) such commercial lettuce production and handling cease in 
1992 and when former industry members were polled, they did not expect 
a revival of the industry, and the consensus was that the order should 
be terminated.

List of Subjects in 7 CFR Part 971

    Lettuce, Marketing agreements, Reporting and recordkeeping 
requirements.

PART 971--[REMOVED]

    1. The authority citation for 7 CFR part 971 continues to read as 
follows:

    Authority: 7 U.S.C. 601-674.

    2. Accordingly, 7 CFR part 971 is removed.

    Dated: June 6, 1995.
David R. Shipman,
Acting Deputy Assistant Secretary, Marketing and Regulatory Programs.
[FR Doc. 95-14473 Filed 6-12-95; 8:45 am]
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